Twomey v Nowra Public School Parents & Citizens Association

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Twomey v Nowra Public School Parents & Citizens Association [2023] NSWPIC 305
APPLICANT:	Janelle Twomey
RESPONDENT:	Nowra Public School Parents & Citizens Association
Member:	John Turner
DATE OF DECISION:	28 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consequential condition to left hip disputed; claim for permanent impairment compensation; claim for weekly benefits compensation; sections 32A(a), 37 and 66; Schedule 3 clause 9; Kooragang Cement Pty Limited v Bates, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan, Moon v Conmah Pty, State of New South Wales v Bishop, Briginshaw v Briginshaw, Wollongong Nursing Home v Deware and McCabe Terrill Lawyers v A referred to; Held – the applicant sustained a consequential condition of the left hip due to the injury to her low back arising out of or in the course of her employment with the respondent; between 22 June 2014 and 9 September 2016 the applicant had no capacity for work as a result of the injury to her lumbar spine on 9 September 2008 and the consequential injury to her left hip; by consent the applicant has sustained 15% whole person impairment of the lumbar spine due to injury sustained on 9 September 2008.
determinations made:

The Commission determines:

The applicant sustained a consequential condition of the left hip as a result of the accepted injury to the lumbar spine on 9 September 2008.
That between 22 June 2014 and 9 September 2016 the applicant had no capacity for work as a result of the injury to her lumbar spine on 9 September 2008 and the consequential injury to her left hip.
By consent the applicant has sustained 15% whole person impairment of the lumbar spine due to injury sustained on 9 September 2008.

The Commission orders:

The respondent is to pay the applicant the following pursuant to s 37 of the Workers Compensation Act 1987:
a.     $503.20 per week from 23 June 2014 to 30 September 2014;
b.     $508 per week from 1 October 2014 to 31 March 2015;
c.     $512 per week from 1 April 2015 to 30 September 2015;
d.     $519.20 per week from 1 October 2015 to 31 March 2016, and
e.     $522.40 per week from 1 April 2016 to 9 September 2016.
I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.     Date of injury: 9 September 2008 (personal injury)
b.     Body systems/parts:
i.Left lower extremity (hip and left lateral cutaneous femoral nerve sensory deficit) (consequential)
ii.Scarring (TEMSKI) (total left hip replacement surgery) (consequential)
c.     Method of assessment: Whole person impairment
The documents to be reviewed by the Medical Assessor are:
a.     Application to Resolve a Dispute and attached documents;
b.     Reply and attached documents; and
c.     This Certificate of Determination and Statement of Reasons.
The appointed Medical Assessor is to be advised that the permanent impairment of the lumbar spine has been agreed at 15% whole person impairment and is to include the agreed impairment of the lumbar spine when assessing the combined whole person impairment due to injury sustained on 9 September 2008.

STATEMENT OF REASONS

BACKGROUND

Janelle Twomey, the applicant, was employed by Nowra Public School Parents & Citizens Association, the respondent, as a canteen supervisor. The applicant commenced employment with the respondent in or about 1996 and ceased employment with the respondent on 20 June 2014.
The applicant has brought proceedings in the Personal Injury Commission (the Commission) in which it is alleged that on or about 9 September 2008 she sustained injury to her lumbar spine and right lower extremity and that as a result of those injuries she developed a consequential condition of her left lower extremity.
The applicant seeks the following compensation:
(a) weekly benefits compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) from 23 June 2014 until such time as 130 weeks of weekly benefits compensation has been paid, and
(b) permanent impairment compensation pursuant to s 66 of the 1987 Act for permanent impairment of her lumbar spine, left lower extremity and TEMSKI/scarring.
The applicant had also claimed weekly benefits compensation pursuant to s 38 of the 1987 Act and permanent impairment compensation pursuant to s 66 of the 1987 Act for permanent impairment of the right lower extremity. At the time of the conciliation/arbitration conference the applicant limited the claim for weekly benefits compensation to s 37 and the claim for permanent impairment of the right lower extremity was withdrawn on the basis that there was no assessable permanent impairment of the right lower extremity.
On 9 September 2008 the applicant was unpacking a delivery. As she picked up a box and started to turn she felt a click and pinch in her back with pain down her right leg to the knee. Over the following weeks her symptoms worsened and on or about 20 October 2008 whilst taking a shower at home she experienced acute back pain which extended down her right leg causing her to collapse. The applicant was transferred by ambulance to Shoalhaven District Memorial Hospital before being transferred to Wollongong Public Hospital where a right sided L5/S1 microdiscectomy was performed on 25 October 2008 by neurosurgeon, Dr Darwish Al-Khawaja. Whilst the surgery did give some symptomatic relief the applicant was left with some residual symptoms in her back, right leg and right foot.
In about January/February 2009 the applicant returned to work with the respondent.
On or about 9 December 2011 whilst performing her work duties with the respondent the applicant obtained a drink from a fridge for a student and as she walked back to the counter her left leg gave way and she grabbed a bench to stop herself from falling to the ground. She had immediate pain in her lower back and into her left groin and hip area. The initial medical opinion appears to have been that she had sustained an aggravation of her back condition however extensive left hip osteoarthritis was diagnosed some years later and on 18 October 2018 Dr Thornton-Bott, orthopaedic surgeon, performed a total left hip replacement.
There is no dispute that the applicant on 9 September 2008 sustained injury to her lumbar spine with radiation of symptoms into her right lower extremity. In or about September 2010 the applicant was compensated pursuant to s 66 of the 1987 Act for 14% whole person impairment (WPI) for injury to her lumbar spine.
The respondent disputes that as a result of the accepted injury sustained on 9 September 2008 the applicant has sustained a consequential condition of her left hip. The respondent also disputes the claim for weekly benefits compensation.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a) whether the applicant suffered a consequential condition of the left hip as a result of the accepted injury to the lumbar spine sustained on 9 September 2008, and
(b) whether the applicant has suffered an incapacity for work.
At the conciliation arbitration conference:
(a)    The parties agreed that the applicant has 15% WPI due to injury to the lumbar spine sustained on 9 September 2008. The parties agreed that the lumbar spine is not to be referred to a Medical Assessor (MA) for impairment assessment.
(b)    The applicant agreed that as there is no assessable impairment of the right lower extremity the right lower extremity is not to be referred to an MA for impairment assessment. The Application to Resolve a Dispute (ARD) was amended to delete the claim for permanent impairment compensation for the right lower extremity pursuant to s 66 of the 1987 Act.
(c)    The parties agreed that subject to the determination in respect to consequential injury to the left lower extremity (hip) any referral to an MA for assessment of permanent impairment is to be in respect to the left lower extremity (hip), TEMSKI/scarring (hip replacement) and left lateral cutaneous femoral nerve sensory deficit. The MA is to be notified of the agreed impairment of the lumbar spine of 15% WPI.
(d)    The applicant withdrew the claim for weekly benefits compensation pursuant to s 38 of the 1987 Act.
(e)    The parties agreed the pre-injury average weekly earnings (PIAWE) at $548.20 which was applicable as at 9 September 2008. The first date of indexation that is to be applied was agreed by the parties to be from 1 April 2009. The parties agreed that with indexation the following relevant PIAWE rates apply:
i)from 1 April 2014                $629.00;
ii)from 1 October 2014           $635.00;
iii)from 1 April 2015                $640.00;
iv)from 1 October 2015           $649.00, and
v)from 1 April 2016                 $653.00.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 2 May 2023. Mr Mark Bolton, counsel, instructed by Ms Anne Barlow, solicitor, appeared for the applicant, who was present. Ms Lyn Goodman, counsel, appeared for the respondent, instructed by Ms Lucy Munro. The proceedings were conducted by MS TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicants statement

The applicant has provided a statement dated 20 February 2023 in which it is her evidence that she commenced employment with the respondent as a canteen supervisor in about 1996. She worked five days per week between about 8.30am and 2.00pm however she would regularly perform unpaid work beyond those hours.
Her duties involved ordering stock, grocery shopping, unpacking deliveries of stock, food preparation and cooking, serving food and beverages, catering for sports carnivals and conferences, invoicing, general money handling and organising the volunteer roster.
The duties required her to stand throughout the shifts. There was frequent repetitive bending, forward leaning, lifting and carrying. Stock was ordered in bulk. Unpacking deliveries involved repetitive lifting of heavy boxes of primarily frozen food or beverages.
The applicant usually worked alone, however, volunteers would assist during the lunch hour to bag and serve food. The volunteer assistance was unreliable, so the applicant was often left without anyone to help unless the students assisted.
On 9 September 2008 the applicant was unpacking a box of frozen sausage rolls, as part of a large delivery of stock. She picked up a box and started to turn to her left when she felt a click and pinch in her back with immediate pain down her right leg to the knee. The applicant continued to work with difficulty, however she had a numb, tingly pain extending from her lower back to her right ankle which got worse over a period of about four weeks.
On or about 20 October 2008 whilst taking a shower at home she experienced sharp excruciating back pain extending down her right leg which caused her to collapse. She was transferred by ambulance to Shoalhaven District Memorial Hospital before being transferred to Wollongong Public Hospital where a right sided L5/S1 microdiscectomy was performed on or about 25 October 2008 by the neurosurgeon, Dr Darwish Al-Khawaja.
Mr Gerard Basham, physiotherapist, was initially consulted on 8 December 2008 and continued regular physiotherapy until about 2017.
In about January/February 2009 the applicant returned to work with the respondent performing light duties at her usual 27 hours per week. She found it difficult being on her feet for a full shift. It would aggravate her right leg and foot symptoms. She felt unsteady on her right leg and would shift her weight on to her left leg to compensate.
On about 18 March 2010 she was certified as being fit for pre-injury duties even though the symptoms in her right leg had not resolved. She was still unsteady on her right leg and using her left leg to weight bear. She found the frequent bending, forward leaning, lifting and carrying particularly difficult.
In about April 2010, the applicant was reviewed by Dr Al-Khawaja whom she told that she was still experiencing pain and numbness, particularly in her lower right leg and foot, which had got a lot worse since being back working her pre-injury duties. The applicant was experiencing numbness in the lateral two toes of her right foot with a strip of numbness running up the back of her right calf and thigh, as well as weakness and instability in her right ankle.
She became increasingly reliant on her left leg to bear her weight. This was the only way that she felt stable. It was also the only way to get any type of relief from her right leg symptoms. She would use her left leg to kneel down so that she wasn't bending. When standing or sitting she would shift all her weight to her Ieft leg. When walking or ascending and descending stairs, she would lead with her left leg. Over time, all the walking and standing on the left leg at work caused it to feel sore, heavy and weak.
On or about 9 December 2011, she was working through a busy lunch time rush. She served a student who ordered a cold drink. She walked towards the fridge, took out the beverage and turned to walk back to the counter. She had taken one or two steps around a freezer, when her left leg gave way. She grabbed hold of a bench to stop herself from falling to the ground. She felt immediate pain in her low back and into her left groin and hip.
When she returned to work the following Monday her low back, left hip and groin was still sore and as the day went on, the pain referred down to her left knee. The pain was aggravated by prolonged standing and walking around the canteen, repetitive bending, forward leaning, lifting and carrying.
The applicant continued to work despite her symptoms but was heavily reliant on over the counter analgesics and anti-inflammatories. She also purchased special soft soled shoes to help ease the pressure through the ball of her right foot. When wearing ordinary shoes, it felt like there were pebbles under the ball of her right foot and she couldn't place any weight on it.
Due to the persistent symptoms in her Iower back, right leg and left hip/groin she resigned from her employment with the respondent in June 2014. She has not been able to return to any form of employment since.
On 18 October 2018, Dr Thornton-Bott performed a left total hip replacement.
Her continuing symptoms and disabilities as a result of her workplace injuries include:
(a)    Constant low back, left groin and left hip pain.
(b)    Numbness extending from the right buttock, right thigh, right calf to the lateral two toes of her right foot.
(c)    Occasional sharp left hip and left knee pain.
(d)    Right ankle weakness and pain when flexing or pointing her right foot, feeling as though it is tearing or pulling.
(e)    Altered gait to relieve the symptoms in the right leg and foot.
(f)    Disrupted sleep.
(g)    Inability to walk for longer than 30 minutes.
(h)    Difficulty standing for longer than one hour.
(i)    Difficulty ascending and descending stairs.
(j)    Difficulty bending and forward leaning.
(k)    Difficulty lifting and carrying.
(l)    Difficulty kneeling and squatting.

Claim forms

On 25 November 2008 the applicant completed a workers injury claim form in which she recorded that on 9 September 2008 she was lifting delivered frozen goods off the floor into a large box freezer when she sustained injury to her lower back and right leg. She was employed as a casual working 27 hours per week.
On 17 January 2013 the applicant completed a further incapacity form – employee. The date of the recurrence is not recorded however the date of the original injury is recorded as 9 September 2008. The applicant records that she stepped to her left to go to the fridge and as she went to walk her left leg gave way with injury to her left leg, lower back, thigh and groin.
The applicant records that on resuming work duties following the original injury she had numbness in her right leg, with a sensation like bubbles on the bottom of the ball of her right foot, “like your standing on rocks”,[1] and a feeling of tightness around the right ankle and heal. These symptoms had been ongoing since the original injury but the pain had gradually increased over time.
[1] ARD p 13.

Letter of resignation

In a letter of resignation to the P and C Committee dated 16 June 2014 the applicant advised that due to failing health due to the back injury sustained at work in 2008 she was being forced into early retirement. The applicant states in the letter that her back had rapidly deteriorated in the last few years. She was to cease work at the end of her working day on 20 June 2014.

Treating medical evidence

On 25 October 2008 the applicant underwent a right L5/S1 microdiscectomy procedure.
Dr Darweesh Al-Khawaja, treating neurosurgeon, reported to the applicants general practitioner (GP), Dr Christine Daly, on 1 December 2008 that whilst the applicant was doing very well post-surgery, she still had some numbness in her foot. She did not have any back pain.
On 8 December 2008 the applicant attended on Mr Gerard Basham, physiotherapist, who observed that the applicant was very stiff and guarded with moderate imbalance. The applicant next attended on Mr Basham on 11 December 2008 at which time he noted that the applicant was much better but the parasthesia was unchanged, there was less spasm and slight imbalance. On 28 January 2009 Mr Basham noted an “achy”[2] right calf and that there was slight imbalance. On 10 February 2009 Mr Basham recorded that the applicant was uncomfortable through the ankle with moderate imbalance and on 24 February 2009 he noted that the applicant had calf and foot swelling.
[2] ARD p 231.
On 2 March 2009 Dr Al-Khawaja reported to Dr Daly that the applicant was complaining of some pain around the ankle with numbness. She also had swelling of the right ankle.
On 20 March 2009 Mr Basham recorded that the applicant had a niggle in the ankle with moderate “glut” spasm and imbalance. On 23 April 2009 Mr Basham noted that the applicant was going well but still had “nervy pain”[3] with slight imbalance and spasm. On 25 May 2009 Mr Basham observed that the applicant was good with the odd niggle and minimal imbalance. On 22 June 2009 Mr Basham observed that the back was good but the foot was the same and that there was slight imbalance and on 21 July 2009 Mr Basham noted that the applicant had niggles but was good with only slight imbalance.
[3] ARD p 231.
On 18 March 2010 Dr Daly referred the applicant back to Dr Al-Khawaja with residual numbness/swelling of the foot following microdiscectomy.
Dr Al-Khawaja reported to Dr Daly on 20 April 2010 that the applicant still had numbness in her foot but no pain.
Dr Daly issued a certificate of capacity dated 20 November 2012 with a diagnosis of left leg and groin pain due to atypical gait following lower back surgery in October 2008.
Mr Basham reported on 14 January 2013 that the applicant presented on 1 November 2012 with marked leg pain. On examination he observed a lot of gluteal/piriformis spasm and significant pelvic asymmetry which suggested to him sciatic irritation deep in the “gluts” rather than lumbar. He released these muscles and straightened the pelvis.

Dr Daly issued a certificate of capacity dated 14 January 2013 with a diagnosis of left leg and groin pain due to atypical gait post spinal surgery gradually worsening.
On 20 February 2013 Dr Daly reported to the GIO that the applicant had progressively worsening pain in her left leg and groin. The ongoing pain in the right leg was causing atypical gait. Dr Daly expressed the opinion that the “left leg injury is due to compensation as the atypical gait is from recurrent ongoing pain persisting in the right leg”.[4]
[4] ARD p 124.
On 12 June 2014 the applicant attended on the GP, Dr Syeda Uddin, who recorded that there was a new “PNC – pressure / stress at work. Can’t take any stress would like to leave job want to show medical ground”.[5] The applicant was to see the physiotherapist – “will get supportive letter stated back injury at work”.[6] Counselling and support was given.
[5] ARD p 176.
[6] ARD p 176.
Also on 12 June 2014 Dr Syeda Uddin wrote a letter “To whom it may concern”[7] advising that the applicant was psychologically under stress due to the current workplace situation and that she was suffering from back pain which was getting worse, radiating to her legs. The letter advised that the applicant wished to resign her job due to these reasons.
[7] ARD p 127.
On 13 June 2014 Mr Basham in a physiotherapy report recorded that the applicant had experienced several exacerbations of back pain since her lumbar spine surgery in 2008. These exacerbations were becoming more severe and more frequent. The report observed that the applicant’s work involved lifting, stretching and being on her feet. Mr Basham was of the opinion that the applicant’s work duties were no longer suitable for her and recommended that she obtain lighter duties with greater variation particularly in the amount of standing time or “Alternatively it may be time to consider retirement”.[8]
[8] ARD p 128.
On 15 June 2015 Mr Basham reported that the applicant continued working until June 2014 at which point her pain and restriction forced her to give up full time work. The applicant continued to be as active as possible but was suffering acute exacerbations of pain and spasm.
On 15 June 2015 Dr Uddin completed a Centrelink medical certificate in which the doctor recorded a diagnosis of chronic back pain radiating to the left leg and right foot numbness. The applicant had limited mobility with restricted ability to lift and bend. The condition being permanent (likely to persist for two years or more). Dr Uddin certified the applicant unfit for work from 15 June 2015 to 15 October 2015.
Dr Uddin in a Centrelink medical report dated 24 June 2015 records a diagnosis of back pain with radicular left leg pain and numbness in the right leg. Dr Uddin assessed the applicant with restricted ability to lift, unable to sit or stand for long periods of time, limited mobility and bending.
Dr Uddin completed a further Centrelink medical certificate on 4 September 2015 certifying the applicant unfit to work between 4 September 2015 and 4 December 2015.
On 17 August 2017 X-rays were taken of the applicant’s hips. On 18 August 2017 Dr Janet Macintosh reported on the X-rays observing advanced arthropathy affecting the left hip joint with articular collapse of the weight bearing portion of the femoral head possibly secondary to avascular necrosis. Dr Macintosh observed minimal degenerative change of the right hip.
On 26 September 2015 Dr Uddin completed a Centrelink medical certificate in which the doctor recorded a diagnosis of chronic back pain and advanced left hip osteoarthritis. Dr Uddin certified the applicant as unfit for work from 26 September 2017 to 27 November 2017.
On 18 October 2017 Dr Thornton-Bott reported to Dr Irina Moiseeva with a diagnosis of significant left hip osteoarthritis. Dr Thornton-Bott recorded a history that the left hip pain had come on suddenly after a twisting episode about six years prior. The applicant had experienced intermittent pain which had got significantly worse since then. The applicant reported that the pain was exacerbated by bending, she could walk for half an hour with pain. The pain was reported as 6/10 but could be worse. The applicant struggled to get in and out of a car, had trouble with using the steps on her camper van and struggled with her socks.
Dr Thornton-Bott noted that the applicant had been left with some permanent and altered sensation in a S1 distribution following her spinal surgery. There was however no muscle weakness. The applicant was Trendelenburg negative both in stance and gait.
On 27 November 2017 Dr Moiseeva completed a Centrelink medical certificate in which the doctor diagnosed advanced left hip osteoarthritis awaiting total hip replacement. Dr Moiseeva certified the applicant as unfit for work between 27 November 2017 and 27 January 2018. In further Centrelink medical certificates dated 25 January 2018 and 19 April 2018 Dr Moiseeva certified the applicant as unfit for work between 25 January 2018 and 19 July 2018.
On 18 October 2018 left total hip replacement surgery was performed.
On 29 March 2019 Dr Leigh Bennie completed a Centrelink medical certificate which certified the applicant as unfit for work between 2 December 2019 and 2 March 2020. In further Centrelink medical certificates dated 1 July 2019 and 10 September 2019 the applicant was certified unfit for work between 2 July 2019 and 2 December 2019.
On 28 October 2019 Dr Thornton-Bott reported to Dr Bennie that he was of the opinion that the left hip osteoarthritis occurred as a direct result of the original work injury. The doctor was of the opinion that the history and imaging did not suggest any pre-existing or underlying abnormality of the hip that would predispose it to osteoarthritis, and therefore in his opinion the osteoarthritis of the left hip could be attributed to the overloading sustained following the work related back injury.
Dr Thornton-Bott observed that following the hip replacement surgery, the applicant no longer had the disabling left hip pain. The right sided leg symptoms and low back pain were permanent. The doctor anticipated that the applicant would be in a position to return to work in a capacity that fits her residual symptoms.

A/Prof Brett Courtenay

A/Prof Courtenay, orthopaedic surgeon, provided medico-legal reports for the respondent.
A/Prof Courtenay in his report dated 14 April 2022 records that following her L5/S1 microdiscectomy the applicant had some persisting, numbness down the back of her right leg and also had some numbness of the lateral two toes but she otherwise had good strength in her right leg. That pain down the back of the leg and the numbness of the toes has persisted since.
The applicant reported that in 2011 she was working in the canteen when she had a giving way sensation with severe pain in her left groin and fell forward catching herself on a bench. She did not fall to the ground. Rather than a true fall it was a stumble forward due to sudden onset of pain in her left groin.
A/Prof Courtenay noted that it was the loss of abduction that led to the thought that the left hip may be arthritic. In the doctor’s opinion this is significant as this had not been previously detected by the physiotherapist or the applicants GPs.
No previous problems with the hips were reported.
On examination the applicant reported persisting lower back pain which from the description provided by the applicant had not got functionally any worse. She also had persisting numbness in her right leg, numbness of two toes, some aches in her left buttock, some numbness over the front part of the left thigh in the distribution of the lateral cutaneous nerve and soreness in her calf once or twice a month.
A/Prof Courtenay concluded that there had been an acute rupture of the L5/S1 disc affecting the S1 nerve root for which the applicant had a relatively urgent discectomy by
Dr Al-Khawaja in 2008. She had some residual nerve radiculopathy, which had persisted. The applicant then had an episode at work which she described as a sharp pain in her left groin as she twisted. She didn't actually fall but she went forward with the hip giving way and supported herself on a bench. She then had persisting pain variable in its frequency from that point onwards. It was thought that the problem was in her low back however, A/Prof Courtenay believes that this was hip pathology that occurred at that time, and which slowly and steadily progressed until it became severely osteoarthritic.
A/Prof Courtenay observed that the hip X-rays performed on 17 August 2017 suggested that there had been some collapse in the left hip. A/Prof Courtenay speculated that there may have been a degree of avascular necrosis but observed that there is no evidence to prove that as there were no investigations performed.
A/Prof Courtenay observed that treatment did settle acute episodes and she continued to work. However, she eventually had to stop work in 2014 and eventually that groin pain became more and more obvious. It was then associated with loss of movement of the left hip.
In the opinion of the doctor, it is important to note that at the time that the x-rays of the hip were performed on 17 August 2017 the arthritis was described as very advanced, indicating that it had been ongoing for a significant period. The doctor observed that there is no way of knowing how long it went for but in his opinion, it was certainly for a very significant period of time. If in fact there had been some avascular necrosis, then that could well have gone back to that original acute episode back in 2011.
A/Prof Courtenay observed no evidence of any exaggeration, malingering, inconsistencies or unreliability. In his opinion all the history was consistent with what was in the notes.
In the doctor’s opinion the hip replacement was doing very well. The back had pretty much plateaued and there was no real evidence of any real change in the last decade.
A/Prof Courtenay is of the opinion that the incident on 9 September 2008 had no bearing on the left hip condition and is a completely separate incident. The doctor does not believe that the left hip condition is a consequential condition resulting from the incident on 9 September 2008 as it was clearly defined as a separate injury.
A/Prof Courtenay believed that the applicant may have been ready to return to her pre-injury duties. The left groin had much improved, and the osteoarthritis had been treated. The doctor observed however that the applicant at her age with a past history of back problems and some residual right leg radiculopathy, would have difficulty on the open work market.
A/Prof Courtenay in his report dated 29 April 2022 records that it is his opinion that the incident in 2011 was a development of acceleration of an arthritic process in the left hip.[9] In the doctor’s opinion work was a substantial contributing factor in the acceleration and deterioration of that left hip.[10]
[9] ARD p 46.
[10] ARD p 46.
A/Prof Courtenay in his report dated 1 June 2022 records that in his opinion there were two separate incidents. The first was a back injury in 2008 and the second an incident in 2011. The doctor suspects that the 2011 incident was the start of significant symptomatic issues in the left hip. In the doctor’s opinion the 2011 incident was trivial as she just turned around and it was an injury that could very easily have occurred at any time and in any position and it was not in any way caused by excessive works within her employment. It however happened during employment.
Whilst the doctor noted that the applicant reported no symptoms in that area prior to the 2011 incident the doctor suspected that it is highly likely that there would have been symptoms that had been passed off as being related to her back. The doctor’s reasoning is that the left hip became very significantly arthritic over a relatively short period of time requiring a total hip replacement.
In respect to the left hip condition the doctor believes that the work situation was not a significant contributing factor to that acceleration and aggravation, but it was an incidental factor in that it was a twisting injury on that day that caused the initial pain, but it is something that could have occurred at any other time at her age.
The doctor is of the opinion that the 2011 incident was quite minor and would not have been the cause of the left hip problem. Given that her work was standing on her feet but did not involve a lot of strenuous lifting and did not involve any falls or acute injuries, only some twists and turns, the doctor believed that a deduction of 50% is appropriate when assessing permanent impairment. The doctor believed that the prolonged standing doing her employment was a significant contributing factor in the acceleration, exacerbation, and deterioration of the left hip arthritis.

Dr David Cossetto

Dr David Cossetto, orthopaedic surgeon, has provided medico-legal reports for the applicant.
Dr Cossetto in his report dated 28 June 2018 records that following her L5/S1 microdiscectomy surgery the applicant continued to have some niggling low back pain with persisting parasthesia and weakness in her right leg and as a consequence began favouring her left leg at work. In 2011 the applicant injured her left leg when it gave way sustaining a significant twisting injury in a fall onto her left side. From that moment on the applicant experienced ongoing low back pain associated with left groin and hip pain radiating to the level of the left knee joint.
The left groin to knee joint pain increased significantly to the point where in the second half of 2017 X-rays were performed of the hips which showed severely advanced osteoarthritic change of the left hip.
Prior to working for the respondent, the applicant worked in the cash office at Coles supermarket in Nowra and also in the cash office of Woolworths in Nowra.
The doctor noted that on examination the applicant had persisting numbness of the lateral two toes of her right foot with a strip of numbness which ran right up the back of her right calf and right thigh. She had severe constant pain in her left groin and hip region which radiated to her left knee joint and at times the left lower limb gave way secondary to the pain. There was weakness of right dorsiflexion and plantar flexion.
The applicant was experiencing pain which woke her, and the pain was exacerbated by all activities involving standing and walking. She negotiated stairs one step at a time using a rail and she had a walking distance of 500m limited by pain. Because of her symptoms the applicant had been unable to get back to any form of employment and also had great difficulty sitting for any significant period of time. Despite her difficulties the applicant was doing 15 hours of volunteer work per week assisting on a community bus and also serving light refreshments at a Senior Citizen’s Club.
The applicant walked with a limp.
Dr Cossetto is of the opinion that the residual neurological symptoms from the lower back injury led to favouring of the left leg which had gone on to the development of a symptomatic left hip osteoarthritis.
In the doctor’s opinion, on the balance of probabilities, it is more likely than not that the fall at work in 2011 when the left leg gave way was causally related to the lower back injury. The doctor reasoned that the low back injury led to a right L5/S1 disc protrusion requiring microdiscectomy and unfortunately residual symptoms persisted in the right lower limb. This led to the favouring of the left leg and as a result accelerated osteoarthritic wear of the left hip joint which became symptomatic as a result of the giving way episode. In the opinion of Dr Cossetto the left hip condition is consequential to the lower back injury.
Dr Cossetto observed that the left hip osteoarthritis is a degenerative condition however, in the doctor’s opinion the reason for it becoming symptomatic at a relatively young age is due to an aggravation and deterioration of the left hip osteoarthritis resulting from favouring of that leg as a result of residual ongoing symptoms and weakness in the right leg after the L5/S1 right sided disc protrusion.
Dr Cossetto in his report dated 7 April 2021 records that the applicant presented with persisting numbness in the lateral two toes of her right foot with a strip of numbness which ran right up the back of her right calf and thigh. This had not altered in the period since his previous examination in 2018. There was weakness of right foot dorsiflexion and plantar flexion. There was ongoing discomfort in the lower lumbar spinal region. The applicant was experiencing moderate intermittent left groin and upper thigh discomfort despite the left total hip replacement, and this was exacerbated by standing and walking. The pain would awaken her from her sleep and was associated with loss of sensation in the lateral cutaneous femoral nerve distribution of the upper lateral half of the thigh. The applicant negotiated stairs one step at a time using a rail and could walk at a gentle pace for one hour. The applicant was able to dress independently and performed household chores. The applicant was taking Panadol 6-8 tablets per week for pain relief. She walked with a limp.
Dr Cossetto was of the opinion that the applicant was not fit for her pre-injury occupation as that involved considerable standing and some degree of walking which aggravated her left residual postoperative hip symptoms. Those activities would also contribute to aggravation of residual low back pain. Dr Cossetto was of the opinion that the applicant would be better suited to sedentary office-type employment.
In relation to the symptomatic left hip joint osteoarthritis, Dr Cossetto is of the opinion that the applicant’s employment was the main contributing factor to causing, aggravating and accelerating that condition. She had no symptoms related to left hip joint osteoarthritis prior to her fall in 2011 in which she sustained a significant twisting-type injury to her left leg.
Dr Cossetto in his report dated 6 October 2022 records that his initial reports were based on the history provided to him at the time which described a fall at work in December 2011 in which the applicant injured her left hip. At the time the applicant continued to have low back pain despite the spinal surgery. The doctor noted that the applicant was deemed fit for pre-injury work duties on 18 March 2010 having performed light duties from the end of Jan/Feb 2009. At the time of the injury in December 2011, the applicant was still having low back pain with persisting parasthesia and weakness in the right leg and as a consequence had been favouring her left leg at work.
Dr Cossetto observed that although the mechanism of injury, as related by the applicant, had changed somewhat from that of a significant twisting injury to a giving way sensation in the left hip without a fall, up until that point in time she had been favouring her left leg to ambulate. From that point she experienced left groin pain and hip pain radiating to the level of her left knee joint. The symptoms were initially thought to be due to radiation of discomfort from the lumbar spine.
Dr Cossetto is of the opinion that despite the circumstances surrounding the initiation of left hip symptoms, the applicant was already favouring her left leg as a result of ongoing parasthesia affecting her right leg at that time and in the doctors opinion she developed an acute aggravation of underlying left hip joint osteoarthritis which subsequently over the course of 6 years deteriorated to the point where radiographs performed in the second half of 2017 showed severely advanced osteoarthritic change. The doctor does not believe that these changes would have been present at the time of the initiation of left groin and thigh discomfort in December 2011.
The doctor observed that on examination in his report dated 7 April 2021 the applicant was noted to have persisting numbness in the lateral two toes of her right foot with a strip of numbness running right up the back of her right calf and right thigh and that had not altered since his examination in 2018. There was weakness of the right foot dorsiflexion and plantar flexion. In the opinion of Dr Cossetto with the distribution of neurological involvement the abductors of the right hip would also have been weak although these were not formally tested although a limp was noted on examination. This would have caused a degree of Trendelenberg gait, altering normal gait mechanics and thereby loading the left hip. Therefore, in his opinion the difference in circumstances of description of the injury that occurred in December 2011 are inconsequential.

Dr Cossetto is of the opinion that the two separate incidences are related and should be packaged under the one claim. That is, the initial injury to the back sustained in 2008 contributed to the development of symptoms that occurred in 2011.
Dr Cossetto is of the opinion that the incident on 9 September 2008 did cause or did materially contribute to the injuries and symptoms to the left hip and groin that occurred in 2011.

Dr Michael Davies

Dr Michael Davies provided a forensic report for the respondent dated 24 February 2010. Dr Davies noted that the leg pain had resolved since the back operation however the applicant was aware of persisting numbness in the back of her thigh and over the lateral aspect of the right foot, including the little toe. She had occasional low backache. She had no difficulty walking and the leg did not give way.
Prior to working for the respondent, the applicant had worked for Coles for 11 years in the cash office and doing some checkout duties. She also worked with Woolworths for about 10 years, doing checkout and night filling duties.
On examination the right ankle reflex was absent, and the applicant reported impaired pinprick appreciation over the lateral aspect of the right foot and the lower posterolateral calf.
The prognosis was for intermittent low back discomfort and persisting sensory impairment in the right lower limb.
The doctor observed that the applicant had returned to her pre-injury duties and was fit to continue those. However, in the doctor’s opinion she should not lift weights in excess of 7kg on a repetitive basis and 12kg on an occasional basis.

Dr Raymond Wallace

Dr Wallace, orthopaedic surgeon, provided a forensic report for the applicant dated 9 November 2009. The applicant complained of persisting lumbar spine pain in the region of the L4 and L5 spinous processes which she described as intermittent twitches of pain. The pain had no precipitating factors and was relieved by sitting and resting. The applicant also noted numbness in the posterolateral aspect of her right thigh and lateral border of her right foot. She complained of right leg weakness. She noted intermittent stiffness of her lumbar spine.

SUBMISSIONS

Oral submissions were made on behalf of the applicant at the arbitration hearing which were sound recorded. The sound recording is available to the parties. Due to issues in respect to time the respondent provided written submissions and the applicant provided written submissions in reply.

Applicant’s submissions

In summary, through Mr Bolton of counsel, the applicant submitted that the opinion of Dr Cossetto that the left hip injury is a consequential condition should be accepted. That Dr Cossetto in his report dated 28 June 2018 expressed the opinion that the residual right lower limb neurological symptoms led to favouring of the left leg and this accelerated osteoarthritic wear of the left hip joint which became symptomatic as a result of the giving way episode in 2011. In the opinion of Dr Cossetto the reason for the left hip becoming symptomatic at a relatively young age is due to an aggravation and deterioration of the left hip osteoarthritis resulting from favouring that leg.
That Dr Cossetto in his report dated 6 October 2022 went into more detail in respect to the mechanical issues relating the left leg condition to the back injury. That whilst the history of the event in December 2011 as described to him had changed from a fall to a giving way sensation in the left hip without fall, up until that point in time the applicant had been favouring her left leg due to her residual right leg symptoms. The incident in December 2011 caused an acute aggravation of the underlying left hip osteoarthritis which subsequently, over the course of 6 years, deteriorated to the point where x-rays performed in the second half of 2017 showed severely advanced osteoarthritic change. Dr Cossetto does not believe that those changes would have been present at the time of the initiation of the left groin and thigh discomfort in December 2011.
In the opinion of Dr Cossetto the difference in the description of the incident which occurred in December 2011 between a fall or a twist is inconsequential.
It was submitted that all the applicant needed to prove for a consequential condition is that the first incident has made a material contribution to the symptoms.
The applicant submitted that the existence of gait derangement is supported by the certificates of capacity from Dr Daly who was the applicants GP between 2008 and 2013. Dr Daly in a certificate of capacity dated 20 November 2012 diagnosed left leg/groin pain due to atypical gait following surgery on lower back in October 2008. It was similarly observed that a certificate of capacity completed by Dr Daly on 19 February 2013 records a diagnosis of left leg/groin pain as a result of atypical gait post spinal surgery, gradually worsening. The applicant submitted that Dr Daly would not have referred to gait derangement if she had not observed it since 2008.
Dr Daly reported to the GIO on 20 February 2013. It appears that the applicant attended on the doctor on 6 September 2012. The doctor reported that the applicant had ongoing pain in the right leg causing atypical gait.
The applicant submitted that whilst Dr Daly refers to pain in the right leg where others refer to numbness going all the way down the right leg and into two toes, there was obviously some ongoing problems in the right leg be it pain or numbness, but probably both, causing atypical gait.
Dr Daly in her report of 20 February 2013 opines that the left leg injury is due to compensation as the atypical gait is from recurrent ongoing pain persisting in the right leg.
The clinical notes of the treating physiotherapist, Mr Basham, record numerous references to imbalance from 8 December 2008. In the applicant’s submission the references to imbalance indicate a change in the biomechanics and that the applicant’s body was not balanced, which in the applicant’s submission supports that there was a disturbance to her gait and that the gait disturbance went back to the time of the lower back operation. That after the low back operation the applicant has been left with ongoing radiculopathy going down her right leg
and an imbalance which got worse after the incident in 2011 and that in the opinion of Dr Cossetto has resulted in the arthritic condition in the left hip.
In the applicant’s submission the opinion of A/Prof Courtenay that what happened in 2011 is an independent event and nothing to do with the back injury in 2008 should not be accepted. The applicant submitted that the opinion of A/Prof Courtenay is confusing, observing that the doctor talks about the problem in the hip as having occurred for the first time at work in December 2011 and that the doctor referred to the incident as quite a minor incident which would not have caused the hip problem. A/Prof Courtenay is however of the opinion that prolonged standing during her employment with the respondent was a significant contributing factor in the acceleration, exacerbation, and deterioration of the hip arthritis. The applicant submits that it is equally consistent that the deterioration was the result of the applicant standing in her employment after the back injury produced the problems in her right leg that lead to her favouring her left leg.
As to incapacity the applicant submitted that she worked on with her injuries until the middle of 2014. She was experiencing difficulties at work. In support of the submission the applicant observed that the physiotherapy report of Mr Basham dated 13 June 2014 records that the applicant had several exacerbations of back pain since her lumbar disc surgery in 2008. The exacerbations had become more frequent and more severe. Her work which involved lifting, stretching and being on her feet was no longer suitable.
The physiotherapy report of Mr Basham dated 15 June 2015 records that the applicant continued working until June 2014 at which point her pain and restriction forced her to give up full-time work.
The applicant in her letter of resignation dated 16 June 2014 states that due to failing health due to her back injury that occurred in 2008 she is forced to retire. During the last few years her back had rapidly deteriorated, she wanted to go on working but gave notice that she would cease work on 20 June at 1.45pm.
The applicant submits that from the date of her resignation of employment with the respondent on 20 June 2014 she was unfit due to her back injury for the work that she had been doing. That what lead to her ceasing work was the exacerbations in respect to her back condition.
The applicant has not worked since 20 June 2014. It was noted that the applicant did do some voluntary work in 2018. On 15 June 2015 she obtained a medical certificate for Centrelink purposes. The certificate records that the applicant had back pain radiating to her left leg, limited mobility, restricted weightlifting and bending. The applicant was certified as unfit for work from 15 June 2015 to 15 October 2015. Not able to undertake usual work, not able to do any other work for 8 hours or more per week.
It was submitted on behalf of the applicant that she was probably not much worse in June 2015 than she was in June 2014. In the applicant’s submission she has had no capacity for any form of work since she ceased work with the respondent in June 2014.
The applicant observed that there are other medical certificates. A certificate dated 4 September 2015 records that the applicant was suffering from chronic back pain radiating into her left leg, that the condition is permanent, likely to persist for two years or more. The applicant was certified as unfit for work from 4 September 2015 to 4 December 2015. Not able to undertake usual work and not able to work 8 hours or more per week in any other work. There is then a gap in the certificates until 2017 but these certificates say that the condition is permanent, is likely to go on for at least two years and unfit for usual work and unfit for any other work for 8 hours or more per week.
In the applicant’s submission there is no suitable work for the applicant. The applicant’s work history does not refer to any sedentary work or sit down work, she has worked in a supermarket performing checkout and night filler work for extensive periods and had worked for the respondent since 1996. Whilst there are some references that the applicant maybe fit for some form of sedentary work her whole employment history is not in sedentary employment and there is no suggestion that she has any form of training for sedentary work. All of her work seems to have been work which involved standing, lifting bending and doing things of a physical nature. If she is unfit for work in the canteen, she is unfit for any work which seems to be of the same nature as the work that she has done all her working life.
The applicant submitted that she is unfit for work and has been since June 2014 and seeks an award of weekly benefits compensation at 80% of the PIAWE until such time as she has received 130 of weekly benefits compensation.

Respondent’s submissions

In summary through Ms Goodman of counsel, the respondent submitted that the injury to the left hip is a separate incident, and not as a result of the injury to the lumbar spine on 8 September 2008.
It is submitted that Dr Cossetto’s opinion, both as to favouring her left leg and in respect of a fall on to her left side in 2011, is not consistent with the contemporaneous evidence.
The clinical notes of the GPs which commence with a consultation on 18 March 2008, prior to the incident of 9 September 2008, disclose no record of the applicant reporting an altered gait/limp nor any of the doctors she was consulting noticing an altered gait/limp since the incident on 9 September 2008. The first time there is any such mention is when the applicant is seen by Dr Moiseeva on 27 November 2017 when the doctor recorded that the applicant was walking with a limp and was awaiting a hip replacement. This consultation is some 6 years after the incident in 2011.
Following the injury on 9 September 2008 the applicant came under the care of
Dr Al-Khawaja.
Dr Al Khawaja continued to review the applicant following her L5/S1 right microdiscectomy surgery and there is no record of any complaints in respect of her left leg/hip, although she continued to complain of numbness in her right foot, nor any complaints regarding her leg giving way. Nor is there any record by Dr Daly in her referrals to Dr Al-Khawaja, of her leg giving way or any complaint regarding her left hip.
On 17 January 2013 the applicant completed a further incapacity claim form which contains no reference to the applicant having suffered a fall.
Dr Paul Thornton-Bott saw the applicant on 18 October 2017 and provided a report on the same date to the applicant’s GP. The history recorded by Dr Thornton-Bott is that the applicant reported left hip pain for about six years i.e. in about 2011 that came on suddenly after a twisting episode. This history is consistent with the history in the further incapacity claim form and also the history given to A/Prof Courtenay.
Dr Thornton-Bott in a further report dated 28 October 2019 opines that the osteoarthritis of the left hip is a direct result of the work injury, however he does not explain how or why he has come to this conclusion.
Dr Thornton-Bott further states that the history and imaging do not suggest any pre-existing or underlying abnormality to the hip that would predispose it to osteoarthritis, and it can therefore be attributed to the overloading sustained following the work injury.
The subsequent development of osteoarthritis led to the necessary total hip replacement in 2018 and this was therefore a necessary result of the work injury.
The respondent submits that the opinion of Dr Thornton-Bott ought to be given no weight on the basis that his opinion on causation is unsupported by any proper history of any connection between the injury on 8 September 2008 and whatever happened in 2011, or by any proper explanation of the imaging/radiology that he relied upon. In his initial report he refers to a twisting episode. He does not in his report of 28 October 2019 explain how a twisting injury is related to the initial work incident on 8 September 2008.
Dr Thornton-Bott refers to imaging but does not identify what imaging he has had access to. He then attributes the hip condition to overloading sustained following the work injury. He does not however explain what the overloading is. Dr Thornton-Bott not having provided the facts and reasoning process for his opinion, it is submitted that his opinion ought to be given no weight.
A review of the clinical notes of Mr Basham, physiotherapist, demonstrate that the applicant was first treated by him on 8 December 2008 and continued to see him on a regular basis until 21 July 2019.
Whilst the clinical notes of Mr Basham refer to imbalance it is not clear what that imbalance is of. There is nothing whatsoever to say that there is any imbalance causing gait alteration. One would have thought that if Mr Basham was noticing an imbalance in the applicant’s gait, he would have noted that. This is not however the case. There is also no medical report from Mr Basham explaining what imbalance he is referring to.
There is a short certificate/report from Mr Basham dated 14 January 2013 that states that he saw the applicant on 1 November 2012 who presented with marked leg pain. Mr Basham does not identify which leg. He goes on to state that upon examination there was a lot of gluteus/piriformis spasm and significant pelvic asymmetry suggesting sciatic irritation deep in the glutes rather than lumbar. He further states that they released these muscles and straightened the pelvis. It is submitted that no weight would be given to this document because it is not clear which leg the pain was in, nor does the physiotherapist provide any meaning to his observations i.e. was there any injury to the leg (which one) or was it indeed a further flare up or injury to the low back. In addition, it provides no context.
Dr Cossetto’s opinion that the left hip is a consequential condition to the injury to the back and right leg is based upon the applicant having an uneven gait/limping. That the applicant was limping at all or favouring her left leg in any way is not borne out by any of the contemporaneous evidence i.e. that of the GPs that she saw, Dr Al- Khawaja’s reports. That there was uneven gait/limping is only referred to many years after the incident in 2011. For instance, Dr Al-Khawaja in 2013 reports no limp or favouring of the left leg.
In addition, Dr Wallace who saw the applicant at the request of her solicitors and provided a report dated 9 November 2009 makes no mention of favouring of the left leg or any mention of a limp. Dr Davies who saw the applicant at the request of the insurer on 24 February 2010 has also not recorded any favouring of the left leg or made any mention of the applicant walking with a limp.
An MRI report dated 24 September 2013 records a history of a “twisting injury” two years ago. This history is consistent with the opinion of A/Prof Courtenay.
A/Prof Courtenay opined that the incident in 2011 was not a consequential condition from the work-related injury in September 2008. A/Prof Courtenay was of the view that the episode that the applicant described as a sharp pain in her left groin when she twisted caused hip pathology which slowly and steadily increased until it became severely arthritic.
In his report of 1 June 2022 clarifying his earlier opinion A/Prof Courtenay opined that the incident in 2011 was a trivial incident and not a significant contributing factor to the left hip arthritis. He thought that it was an incidental factor in that it was a twisting injury on that day that caused the initial pain, but it was something that could have occurred at any time and at any age.
Dr Cossetto provided a further report dated 6 October 2022 in which he observed that the mechanism of injury had changed somewhat from that of a significant twisting injury to a giving way sensation in the left hip without a fall, however he continued to note that up until 2011 the applicant had been favouring her left leg to ambulate.
Dr Cossetto opined that the applicant developed an acute aggravation of underlying left hip joint osteoarthritis. Dr Cossetto opined that the two separate incidents in September 2008 and 2011 were related. That the initial injury to the back in September 2008 contributed to the development of the symptoms in 2011.
The respondent submitted that the test for a consequential condition is an unbroken chain of causation: Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452. In the respondent’s submission the chain of causation has been broken by the incident in 2011.
This is particularly the case if the applicant was not favouring her left leg as a result of the 2008 injury. The respondent submitted that on the basis of the contemporaneous evidence one would not feel a sense of actual persuasion that prior to the incident in 2011 the applicant was favouring her left leg as a result of pain in her back and persisting paraesthesia and weakness in her right leg.

Applicant’s submissions in reply

In summary, through Mr Bolton of counsel, the applicant submitted in reply that there is a gap in the clinical notes from 15 October 2008 to 22 August 2013 at which time the applicant’s GP was Dr Christine Daly. The clinical records of Dr Daly are missing so there are no clinical notes in evidence until 22 August 2013.
The applicant submits that the applicant’s atypical gait was well known to Dr Daly in 2012 and was attributed by her to an atypical gait post the spinal surgery in October 2008. Dr Daly provided certificates of capacity and a report to the GIO which refer to the applicant’s altered gait.
The applicant submits that the incident in October 2011 rendered an ongoing condition in the left hip symptomatic (an exacerbation). Dr Thornton-Bott could not identify anything that would predispose the applicant to osteoarthritis and by process of elimination attributed it to the overloading of the left leg after the back injury.

The applicant submits that it is very significant that the X-ray of the hip’s dated 17 August 2017 is reported as showing “minimal degenerative change on the right”. Which in the applicant’s submission is presumably why Dr Thornton-Bott considered there was no underlying abnormality of the hip that would predispose it to osteoarthritis. If the applicant were predisposed to osteoarthritis, one would expect her to have had similar pathology in the right hip in September 2017. In the applicant’s submission the opinion of Dr Thornton-Bott is reasoned and ought to be accepted.
The applicant submits that the imbalance referred to by the physiotherapist, Mr Basham, is entirely consistent with gait derangement.
The applicant submits that the real issue is whether the back injury made a material contribution to the development of osteoarthritis in the left hip. The applicant submitted that the test for causation in workers compensation is the common law test: Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [53]. That it is an undemanding test and a material contribution might only be a 10% contribution: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at [315B-C]; [352A-B] and [357G].
The applicant submits that if the back injury and its consequences (altered gait) made a 10% contribution to the osteoarthritic left hip, it matters not that later incidents (including the incident in 2011) also contributed.
The applicant submits that what is missing from A/Prof Courtney’s report is any consideration of the proposition that the osteoarthritis in the left hip was contributed to by the back surgery and its aftermath. A/Prof Courtenay is of the opinion that the incident in 2011 was a minor incident and would not have been the cause of the hip problem. What then caused it? Dr Thornton-Bott says that there are no predisposing factors. A/Prof Courtenay believes that the prolonged standing doing her employment was a significant contributing factor in the acceleration, exacerbation and deterioration of the hip arthritis. If that were so one would expect the right hip to show similar pathology to the left hip. But it does not. Something other than the ordinary duties of work has affected the left hip. By process of elimination the only thing that has affected the left hip is, as Dr Thornton-Bott and Dr Cossetto opine, the consequences of the back injury and surgery.
A/Prof Courtenay says what happened in 2011 was a trivial incident having little or no causal effect, other than to bring on symptoms, on the osteoarthritic condition in the left hip. A/Prof Courtenay does not say that favouring one leg because of pain or numbness in it cannot lead to the development of an osteoarthritic condition in the hip of the other leg. The applicant submits that the back injury resulted in ongoing radicular symptoms in the right leg which caused her to alter her gait resulting in the causation and/or progression of osteoarthritis in the left hip which became significantly symptomatic following the incident in 2011 which merely exacerbated her osteoarthritis.
In his assessment of permanent impairment (resulting presumably from the 2011 incident) Dr Courtenay made a 50% deduction for a pre-existing condition. He does not say that the pre-existing condition is constitutional or genetic and says that the employment duties have contributed but fails to grapple with the radiological evidence of extensive degeneration in the left hip but minimal degeneration in the right hip which in the applicant submits very strongly suggests that there was a very significant pre-existing condition in the left hip but not in the right hip which begs the question as to what caused it? The answer, the applicant submits, is provided by Dr Thornton-Bott and Dr Cossetto.

FINDINGS AND REASONS

Consideration and findings

Consequential condition of the left hip

To establish that the left hip is a consequential condition the applicant has to prove on the balance of probabilities that the left hip symptoms and restrictions have resulted from the injury sustained to the lower back on 9 September 2008. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 at [100] (Brennan) Deputy President Snell observed that it is not necessary for a worker alleging a consequential condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) involved a compensable injury to the right shoulder which allegedly resulted in a consequential condition of the left shoulder. In Moon Deputy President Roche at [45] stated:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury…”
The question whether a consequential condition has been sustained is a question of fact: State of New South Wales v Bishop [2014] NSWCA 354. Issues of causation must be determined on the facts in each case through a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796 (Kooragang).
The applicant bears the onus of establishing on the balance of probabilities that she has developed a consequential condition as a result of the accepted injury to her low back on 9 September 2008. For a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact: see Briginshaw v Briginshaw [1938] HCA 34; 91938) 60 CLR 336.
There is no dispute that the applicant sustained a lower back injury with radiation of symptoms into her right lower extremity in the course of her employment with the respondent on 9 September 2008. On 25 October 2008 right sided L5/S1 microdiscectomy surgery was performed by the neurosurgeon, Dr Darwish Al-Khawaja. In about January/February 2009 the applicant returned to work with the respondent performing light duties at her usual pre-injury 27 hours per week before upgrading to pre-injury duties.
Whilst the microdiscectomy surgery did provide some symptom relief the evidence supports, and it appears to be uncontroversial, that unfortunately the applicant was left with some residual symptoms as a result of the accepted lower back injury.
It is the applicant’s evidence that following the microdiscectomy surgery she experienced persisting numbness in the lateral two toes of her right foot with a strip of numbness running up the back of her right calf and thigh, a feeling like pebbles under the ball of her right foot as well as weakness and instability of her right ankle.
In the further incapacity form – employee, completed by the applicant on 17 January 2013 she recorded that on resuming her work duties following the injury in October 2008 she had numbness in her right leg with a sensation like bubbles on the bottom of the ball of her right foot “like standing on rocks” and a feeling of tightness around the right ankle and heal. The pain gradually increased over time.
Dr Al-Khawaja reported to the applicant’s then GP, Dr Daly, on 1 December 2008 that the applicant still had right foot numbness.
On 11 December 2008 the physiotherapist, Mr Basham, noted that the parasthesia was unchanged. On 28 January 2009 he noted an “achy” right calf, on 10 February 2009 he noted that the right ankle was uncomfortable and on 24 February 2009 he noted calf and foot swelling.
On 2 March 2009 Dr Al-Khawaja reported to Dr Daly that the applicant was complaining of some pain around the right ankle with numbness and swelling.
Mr Basham on 20 March 2009 noted that the applicant had a niggle in the right ankle, on 25 May 2009 that there was the odd niggle in the right ankle and on 22 June 2009 that the foot was the same.
Dr Wallace who examined the applicant on or about 9 November 2009 noted that the applicant complained of persisting lumbar spine pain which she described as intermittent twitches of pain as well as numbness in the posterolateral aspect of her right thigh and lateral border of her right foot. The applicant also complained of right leg weakness and stiffness of the lumbar spine.
Dr Davies who examined the applicant at the request of the respondent on or about 24 February 2010 noted persisting constant numbness in the back of the thigh and over the lateral aspect of the right foot, including the little toe. She also had occasional low backache. On examination the doctor observed that the right ankle flex was absent.
Dr Al-Khawaja reported to Dr Daly on 20 April 2010 that the applicant still had numbness in her foot but no pain.
A/Prof Courtenay records that following the lower back surgery the applicant had persisting numbness down the back of her right leg as well as some numbness in the lateral two toes of her right foot, but she otherwise had good strength in her right leg.
Dr Cossetto records that following the low back surgery the applicant had persisting niggling low back pain with persisting numbness of the lateral two toes of her right foot with a strip of numbness which ran right up the back of her right thigh and calf and weakness in her right leg. On examination on or about 28 June 2018 the doctor observed weakness of dorsiflexion and plantar flexion in the right foot.
The applicant’s evidence and the medical evidence supports that as a result of the accepted low back injury sustained on 9 September 2008 the applicant has had persisting symptoms in her low back, right leg and foot since the accepted work-related injury on 9 September 2008 and the L5/S1 microdiscectomy surgery performed on 25 October 2008.
It is the applicant’s evidence that when she returned to work with the respondent in about January/February 2009 following the injury on 9 September 2008 she found it difficult being on her feet for a full shift as her right leg and foot symptoms would become aggravated. She felt unsteady on her right leg and would shift her weight on to her left leg to compensate. It is her evidence that she became increasingly reliant on her left leg to bear her weight as it was the only way that she felt stable and got any relief from her right leg symptoms. She
would use her left leg to kneel so that she was not bending. When walking or ascending/descending stairs she would lead with her left leg. Over time, all the walking and standing on the left leg at work caused it to feel sore heavy and weak.
It is the applicant’s evidence that she relied more heavily on her left leg to bear her weight as a result of her persisting right leg and foot symptoms. It is also the applicant’s evidence that being on her feet would cause the symptoms to become aggravated. The applicant’s evidence that she suffered aggravations is supported by the contemporaneous medical evidence, and in particular the clinical notes of Mr Basham which record variations in the applicant’s condition and intermittent complaints such as aching in the right calf and swelling of the calf and right foot.
Given her persisting right leg and foot symptoms including a feeling under the ball of her right foot like she was standing on rocks it is reasonable to expect that the applicant would have relied more heavily on her left leg in an effort to relieve the discomfort and I accept the applicant’s evidence that she became increasingly reliant on her left leg to bear her weight.
The evidence as to whether the applicant had a limp prior to the incident in December 2011 when her left leg gave way is less conclusive. The applicant in her statement does not overtly refer to the presence of a limp as a result of the residual symptoms from her back injury except when listing her current symptoms and disabilities, and Dr Davies when reporting on 24 February 2010 noted that the applicant had no difficulty walking.
It was submitted on behalf of the applicant that the references to “imbalance” recorded by the treating physiotherapist, Mr Basham, in his clinical notes is evidence of a limp. However, Mr Basham’s notes are brief and do not directly refer to the presence of a limp. Whilst the use of the term “imbalance” may refer to a limp there is significant uncertainty as to whether this is the case. I find that I can place little weight on the references to “imbalance” in the clinical records of Mr Basham in respect to whether the applicant had developed a limp prior to the incident in 2011 when the left leg gave way.
Unfortunately, the clinical records of the applicant’s GP, Dr Daly, at the time of the initial injury on 9 September 2008 through to the incident of the left leg giving way on 9 December 2011 are not in evidence. The records are understood to have been lost. However, Dr Daly in a certificate of capacity dated 20 November 2012 records a diagnosis of left leg and groin pain due to atypical gait following lower back surgery in October 2008 and in a certificate of capacity dated 14 January 2013 records a diagnosis of left leg and groin pain due to atypical gait post spinal surgery gradually worsening. Dr Daly in her report to the GIO dated 20 February 2013 recorded that the ongoing pain in the right leg was causing atypical gait.
Dr Daly as the treating GP would have had the opportunity to observe, examine and question the applicant over multiple attendances and would therefore have been well placed to observe whether the applicant had a limp after the accepted injury to her low back on 9 September 2008 and prior to the left hip giving way in December 2011. Presumably the references to altered gait contained in the certificates of capacity completed by Dr Daly on 20 November 2012 and 14 January 2013 as well as the report to the GIO dated 20 February 2013 are based on the doctor’s observations of the applicant. I am persuaded on the balance of probabilities that the applicant did have a limp prior to the incident in December 2011 when the left hip gave way. In coming to this finding, I also note the applicant’s evidence that she could not place weight on her right foot due to a feeling like pebbles under the ball of the foot.
Whilst Dr Davies in his report dated 24 February 2010 observed that the applicant did not have difficulty walking, I note that Dr Davies examined the applicant almost two years prior to the left hip giving way in December 2011 and it is the applicant’s evidence that she became increasingly reliant on the left leg over time.
The certificates of capacity of Dr Daly dated 20 November 2012 and 14 January 2013 as well as the report of Dr Daly dated 20 February 2013 also support that after the incident in December 2011 the applicant had gait alteration as a result of the right leg symptoms caused by the accepted back injury.
In any event, as will be discussed below, I am of the opinion that little turns on the existence of gait alteration prior to the left hip giving way in December 2011.
On or about 9 December 2011, whilst in the course of her work duties with the respondent, the applicant’s left hip gave way. As a result, she has fallen or stumbled catching a bench top. She did not fall to the ground. At the time she had an immediate onset of pain in her low back, left hip and groin. Initially her symptoms were attributed to an aggravation of her low back condition. Some years later it was suspected that the symptoms may have been arising from the left hip and an x-ray performed on 17 August 2017 confirmed left hip pathology including advanced arthropathy affecting the hip joint and articular collapse of the weight bearing portion of the femoral head.
Whilst the left hip symptoms are almost universally assumed to have commenced with the left leg giving way on 9 December 2011 there is some uncertainty as to whether the left hip symptoms pre-existed this event. A/Prof Courtenay is of the opinion that it is highly likely that there would have been symptoms prior to this event that had been passed off as being related to the back condition on the basis that the hip became very arthritic over a relatively short period of time requiring a total left hip replacement. Given the attribution for some years of the symptoms to the back injury there is some force in A/Prof Courtenay’s speculation.
The respondent submits that the opinion of A/Prof Courtenay that the incidents on 9 September 2008 and 9 December 2011 are two separate unrelated incidents and that the left hip condition is not a consequential condition due to the lower back injury sustained on 9 September 2008 should be accepted. I do not accept the said opinion of A/Prof Courtenay for the following reasons.
In reaching his opinion A/Prof Courtenay does not consider the effects of the increased weight bearing on the left leg as a result of the residual right leg symptoms.
Whilst A/Prof Courtenay suspects that the 2011 incident was the start of the symptomatic issues in the left hip[11] he is of the opinion that the incident was minor and “would not have caused the hip problem”.[12] The doctor also appears to be of the view that the left hip was already affected by arthritis prior to the incident in December 2011. In his report of 29 April 2022 the doctor expresses the view that the incident in 2011 “was a development of acceleration of an arthritic process in the left hip”[13] and in his report of 1 June 2022 he advised that he suspected that it was highly likely that there had been symptoms prior to the incident in December 2011 which had been passed off as part of the back.[14]
[11] ARD p 48.
[12] ARD p 50.
[13] ARD p 46.
[14] ARD p 49.
A/Prof Courtenay does however believe that the prolonged standing doing her employment was a significant factor in the acceleration, exacerbation and deterioration of the left hip arthritis.[15] Whilst A/Prof Courtenay does not explain why the prolonged standing was a significant factor, it seems reasonable to conclude that it is due to the weight bearing loading of the left leg. A loading which would have been increased as a result of the applicant shifting her weight to her left leg due to the persisting right leg symptoms resulting from the accepted low back injury.
[15] ARD p 50.
Thus, whilst A/Prof Courtenay is of the opinion that loading of the left hip when weight bearing was a significant factor in the acceleration, exacerbation and deterioration of the left hip arthritis he does not consider the effects of the increased loading of the left leg caused by the applicant’s increased reliance on the left leg to weight bear as a result of the persisting right leg symptoms caused by the accepted low back injury. In the opinion of A/Prof Courtenay the left hip was already affected by arthritis prior to December 2011 and the incident in December 2011 when the left hip gave way was minor and it is highly likely that the left hip was symptomatic prior to that incident.
Dr Cossetto is of the opinion that whilst the left hip osteoarthritis is a degenerative condition the reason for it becoming symptomatic at a relatively young age is due to aggravation and deterioration of the left hip osteoarthritis as a result of favouring the leg as a result of residual ongoing symptoms and weakness in the right leg due to the accepted low back injury.
Dr Cossetto is of the opinion that the residual symptoms from the lower back injury led to favouring of the left leg which resulted in accelerated osteoarthritic wear of the left hip joint which became symptomatic as a result of the giving way episode. The doctor is of the opinion, on the balance of probabilities, that the fall in December 2011 when the leg gave way was causally related to the lower back injury. Therefore, in the opinion of Dr Cossetto the left hip condition is consequential to the lower back injury.
In the opinion of Dr Cossetto it is irrelevant as to whether the applicant fell as a result of the left hip giving way as the significant issue is the favouring of the left leg as a result of the residual symptoms affecting the right leg.

The treating orthopaedic surgeon, Dr Thornton-Bott is of the opinion that the left hip osteoarthritis can be attributed to the overloading of the left leg due to the accepted injury to the low back on 9 September 2008. The respondent submits that no weight should be given to the opinion of Dr Thornton-Bott as his opinion on causation is not supported by any proper history of any connection between the injury on 8 September 2008 and the incident in 2011 or by any proper explanation of the imaging/radiology that he relied upon, and he does not explain what the overloading is.
The opinion of Dr Thornton-Bott is relatively brief. Both Dr Cossetto and A/Prof Courtenay appear to be of the opinion that the left hip was affected by arthritis prior to December 2011, they both also appear to accept that weight bearing caused an acceleration, exacerbation and/or deterioration of the arthritis. Whilst Dr Thornton-Bott attributes the osteoarthritis to overloading of the left leg it is irrelevant for present purposes as to whether the overloading caused the osteoarthritis rather than caused an acceleration, exacerbation and/or deterioration of the arthritis. The issue in respect to the opinion is that the overloading either caused the osteoarthritis or caused an acceleration, exacerbation and/or deterioration of the left hip osteoarthritic condition.
The significant issue in the doctors’ opinions is the loading of the left lower limb not whether the applicant was limping.
I prefer the opinions of Dr Cossetto and Dr Thornton-Bott that the condition of the left hip is consequential to the accepted lower back injury sustained on 9 September 2008 to that of A/Prof Courtenay for the following reasons. I accept that the applicant has had persisting and ongoing symptoms in her right leg as a result of the injury sustained to her lower back on 9 September 2008. I also accept that due to the persisting and ongoing right leg symptoms a greater load was placed on the left leg in an attempt to relieve and/or minimise the right leg discomfort. A/Prof Courtenay does not consider the effects of the increased weight bearing on the left leg as a result of the residual right leg symptoms. A/Prof Courtenay however is of the opinion that prolonged standing in the course of her employment was a significant contributing factor in the acceleration, exacerbation and deterioration of the left hip arthritis. Applying a commonsense evaluation of the causal chain[16] the increased loading of the left leg as a result of the right leg condition would have contributed to the acceleration, exacerbation and deterioration of the left hip arthritis.
[16] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
This conclusion may also be supported by the fact that at the time that the X-rays were performed of both hips on 17 August 2017 it was reported that there were minimal degenerative changes in the right hip. However, I place little weight on the reported X-ray findings in respect to the right hip as whilst Dr Thornton-Bott is of the opinion that the imaging did not suggest any pre-existing underlying abnormality in respect of the left hip that would pre-dispose it to osteoarthritis there is no direct expert medical opinion that the minimal degenerative changes in the right hip is due to the load bearing undertaken by the left leg.
I accept the opinion of Dr Cossetto that the applicant’s left hip became symptomatic at a relatively young age due to aggravation and deterioration of the left hip osteoarthritis as a result of favouring the leg as a result of residual ongoing symptoms and weakness in the right leg due to the accepted low back injury.
I find that as a result of the accepted injury to the lumbar spine on 9 September 2008 the applicant has sustained a consequential condition of the left hip.

Incapacity

The applicant seeks weekly benefits compensation pursuant to s 37 of the 1987 Act from 23 June 2014 to 9 September 2016 or until such time as 130 weeks of weekly benefits compensation has been paid.
Clause 9 of Schedule 3 of the 1987 Act defines ‘current work capacity’ and ‘no current work capacity’ as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 32A(a) of the 1987 Act relevantly defines ‘suitable employment’ in relation to a worker as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify,..”

Incapacity and the degree thereof is a question of fact and, on the determination of a fact, opinion evidence is admissible if it is expert. Expert evidence is an important (often critical) part of the evidence on the issue but is not the only evidence relevant to the determination.[17]
[17] McCabe Terrill Lawyers v A [2009] NSWWCCPD 46.
In Wollongong Nursing Home v Deware[18] (Deware) it was observed at [59] that ‘suitable employment’ must refer to a real job in employment for which the worker is suited. The determination of what is ‘suitable employment’ is a practical exercise conducted having regard to the factors noted in the definition of ‘suitable employment’ in s 32A. At [63] the process of determining ‘suitable employment’ is summarised as follows:
“…the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; 206 IR 338; [2011] VSCA 121; BC201102758 at [102]) which having regard to the matters, in subs (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
[18] [2014] NSWWCCPD 55.
The applicant submits that she has been totally incapacitated for employment since she ceased employment with the respondent on 20 June 2014. The respondent has made no submissions in respect to incapacity.
It is the applicant’s evidence that her duties with the respondent required her to stand throughout her shift, frequent bending, forward leaning, lifting and carrying and the unpacking of deliveries which involved lifting heavy boxes. It is the applicant’s evidence that due to persistent symptoms in her back, right leg and left hip/groin she resigned from her employment with the respondent in June 2014 and has not been able to return to employment since.
Whilst it would seem that the applicant may have been experiencing some stresses in her employment with the respondent prior to her resignation in June 2014 associated with a new “PNC” Dr Daly had reported to the GIO on 20 February 2013 that the applicant had progressively worsening pain in her left leg and groin and that the ongoing pain in the right leg was causing atypical gait. Dr Uddin on 12 June 2014 reported that the applicant was under psychological stress due to her recurrent work situation and that she was suffering from back pain which radiated into her legs which was getting worse. Mr Basham reported on 13 June 2014 that the applicant had experienced several exacerbations of her back pain since the lumbar spine surgery and these exacerbations were becoming more severe and more frequent. Mr Basham, noting that the applicant’s work duties involved lifting, stretching and being on her feet, was of the opinion that the applicant’s duties with the respondent were no longer suitable and recommended that she obtain lighter duties with greater variation particularly in the amount of standing time or alternatively that retirement be considered.
The applicant in her letter of resignation dated 16 June 2014 advises that she was being forced to retire early due to her back injury advising that her back had rapidly deteriorated in the last few years.
On 15 June 2015 Dr Uddin completed a Centrelink medical certificate in which the doctor recorded a diagnosis of chronic back pain radiating to the left leg and right foot numbness. The applicant had limited mobility with restricted ability to lift and bend. The doctor certified the applicant as unfit for work from 15 June 2015 to 15 October 2015.
On 24 June 2015 Dr Uddin assessed the applicant to have a restricted capacity to lift, unable to sit or stand for long periods of time, limited mobility and bending.
Dr Uddin completed a further Centrelink medical certificate on 4 September 2015 certifying the applicant as unfit to work between 4 September 2015 and 4 December 2015. On 17 August 2017 X-rays of the applicant’s hips were performed which were reported as showing advanced left hip arthropathy with articular collapse of the weight bearing portion of the femoral head. On 26 September 2017 Dr Uddin certified the worker as unfit to work from 26 September 2017 to 27 November 2017 with a diagnosis of chronic back pain and advanced left hip osteoarthritis.
On 18 October 2017 Dr Thornton-Bott recorded that the applicant reported that her left hip pain was exacerbated by bending, she could walk for half an hour with pain. The hip pain was reported to be 6/10 but could be worse. The applicant struggled to get in and out of her car, had trouble with using the steps on her camper van and struggled with her socks.
The applicant underwent left total hip replacement surgery on 18 October 2018.
It is the applicant’s evidence, and the medical evidence supports that at the time that she ceased employment with the respondent she was suffering from low back pain with increasingly severe and frequent exacerbations, left hip and groin pain, radiculopathy in the right leg and was limping. The condition affecting the left hip was degenerative in nature and continued to deteriorate over time until a left total hip replacement was performed on 18 October 2018. Loading of the left leg through weight bearing aggravated the left hip condition.
I accept and find that at the time of her ceasing duties with the respondent on 20 June 2014 the applicant was no longer physically capable of performing those duties with the respondent, those duties being fairly reasonably physical in nature, due to the injury sustained to her low back on 9 September 2008 and the consequential left hip condition.
The applicant’s low back condition and right leg radicular condition is permanent and did not improve following ceasing work with the respondent. The left hip condition continued to gradually deteriorate until the total left hip replacement was performed. I therefore find that the applicant would have remained unfit for her pre-injury duties with the respondent during the period for which weekly benefits compensation is claimed.
The first available medical certificate after the applicant ceased employment with the respondent is a Centrelink certificate completed by Dr Uddin dated 15 June 2015. The certificate certified the applicant as unfit for work from 15 June 2015 to 15 October 2015 identifying limited mobility with restricted ability to lift and bend.
Dr Uddin completed a further Centrelink certificate on 24 June 2015 (approximately one year after the applicant ceased employment with the respondent) in which the doctor noted that the applicant had limited mobility, restricted ability to lift and bend, and was unable to sit and stand for long periods of time. Given the nature of the applicant’s back, right leg and left hip conditions the restrictions identified in the Centrelink certificate of 24 June 2015 appear to be more complete than those that appear in the earlier certificate dated 15 June 2015 which did not deal with the applicant’s ability to sit and stand.
Given the nature of the applicant’s complaints at the time of her ceasing employment with the respondent and that the conditions were not going to improve it seems reasonable to assume that the restrictions contained in the Centrelink certificate of 24 June 2015 could reasonably be applied to the applicant from the date that she ceased employment with the respondent on 20 June 2014.
All available medical certificates in the period for which weekly benefits compensation is claimed certify the applicant as totally unfit for work.
The applicant commenced employment with the respondent in or about 1996. The applicant appears to have no qualifications or experience in sedentary type duties. Prior to commencing employment with the respondent the applicant had worked in supermarkets performing checkout duties, as a night filler and in the cash office.
Night filler duties require constant standing, walking and repetitive lifting and bending. Any checkout or sales role would require standing or sitting for prolonged periods of time, walking, lifting and/or carrying.
I am satisfied that the applicant did not have the capacity to work as a night filler, checkout person or in a sales role from the time that she ceased employment with the respondent.
There is no evidence as to what the cash office duties involved however I assume that these duties did not involve accounting or bookkeeping as there is no evidence of the applicant having any qualifications or training in such occupations. In any event the applicant would not have performed such duties for almost 20 years prior to ceasing employment with the respondent.
No suitable employment has been identified or proposed. Given the nature of the worker’s incapacity, age, education, skills and work experience I find that the applicant had no current work capacity from 21 June 2014 to 9 September 2016. I make no findings in respect to the applicant’s work capacity after 9 September 2016.
Pursuant to s 37(1) of the 1987 Act the weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's PIAWE.
The PIAWE is agreed at $548.20. The parties have agreed on the indexation of the PIAWE in accordance with s 82A of the 1987 Act. The relevant agreed indexed PIAWE amounts are at paragraph 11(e) above.

Permanent impairment

The applicant seeks permanent impairment compensation pursuant to s 66 of the 1987 Act for impairment of the lumbar spine, left lower extremity scarring (hip and left lateral cutaneous femoral nerve sensory deficit) and TEMSKI/scarring (left hip replacement surgery).
In or about September 2010 the applicant was compensated for 14% WPI for impairment of the lumbar spine as a result of the injury sustained on 9 September 2008. The parties have agreed that the applicant now has an impairment of 15% WPI lumbar spine due to injury sustained on 9 September 2008.
As it has been found that the applicant has sustained a consequential condition of the left hip, the left lower extremity (hip and left lateral cutaneous femoral nerve sensory deficit) and TEMSKI/scarring (left hip replacement surgery) are to be referred to a MA for impairment assessment. The lumbar spine is not to be referred but the MA is to be advised of the agreement in respect to the lumbar spine.

SUMMARY

I find that:
a.     The applicant sustained a consequential condition of the left hip as a result of the accepted injury to the lumbar spine on 9 September 2008.
b.     That between 22 June 2014 and 9 September 2016 the applicant had no capacity for work as a result of the injury to her lumbar spine on 9 September 2008 and the consequential injury to her left hip.
c.     By consent the applicant has sustained 15% WPI of the lumbar spine due to injury sustained on 9 September 2008.
The Commission orders:
(a) The respondent is to pay the applicant the following pursuant to section 37 of the 1987 Act:
(i)$503.20 per week from 23 June 2014 to 30 September 2014;
(ii)$508 per week from 1 October 2014 to 31 March 2015;
(iii)$512 per week from 1 April 2015 to 30 September 2015;
(iv)$519.20 per week from 1 October 2015 to 31 March 2016; and
(v)$522.40 per week from 1 April 2016 to 9 September 2016.
(b) I remit this matter to the President for referral to a MA pursuant to s 321 of the 1998 Act for assessment as follows:
i)Date of injury: 9 September 2008 (personal injury)
ii)Body systems / parts:
(1)Left lower extremity (hip and left lateral cutaneous femoral nerve sensory deficit) (consequential)
(2)Scarring (TEMSKI) (total left hip replacement surgery) (consequential)
iii)Method of assessment: WPI.
(c) The documents to be reviewed by the MA are:
i)ARD and attached documents;
ii)Reply and attached documents, and
iii)this Certificate of Determination and Statement of Reasons.
(d) The appointed MA is to be advised that the permanent impairment of the lumbar spine has been agreed at 15% WPI and is to include the agreed impairment of the lumbar spine when assessing the combined WPI due to injury sustained on 9 September 2008.

[2023] NSWPIC 305

28 June 2023